May 31, 1988
Appeal of
GREGORY HILDERBRAND d/b/a
NEVERTHELESS MESSENGER SERVICE
Under Contract No. HCR 60460
PSBCA No. 1734
APPEARANCE FOR APPELLANT:
Gregory Hilderbrand
APPEARANCE FOR RESPONDENT:
Maria T. Robinson, Esq.
OPINION OF THE BOARD
This is an appeal from the termination for default of Appellant’s contract to transport mail between Joliet and Ransom, Illinois, with intermediate stops. The contract was terminated for Appellant’s failure to provide service on the first two days of the contract term due to Appellant’s alleged failure to provide a vehicle meeting the contract requirements.
FINDINGS OF FACT
1. By letter dated February 4, 1987, the Contracting Officer advised Appellant that he was the low, responsive bidder on solicitation 608-122-86 for the transportation of mail between Joliet and Ransom, Illinois (Stipulation (Stip.) 1; Appeal File page (AF) 51, 52).
2. In an undated memorandum, Appellant advised the Postal Service that he intended to acquire a vehicle by March 16, submit it for inspection by March 8, and begin operating the route on March 23, 1987 (Stip. 7, AF 74). On March 17, Appellant orally requested an extension of time until March 30, 1987, to begin operating the route (Stip. 8; AF 75). The request was granted by Respondent (AF 75).
3. Contract HCR 60460 was awarded to Appellant on March 18, 1987, for a term beginning on March 30, 1987, and ending June 30, 1089 (Stip. 2; AF 3). Under the contract Appellant was to operate two trips per day, Monday through Saturday. The first trip was to leave Joliet at 6:10 A.M. The return trip was to leave Ransom at 4:30 P.M. (Monday through Friday) or 3:30 P.M. (Saturday) (AF 5).
4. The contract contained PS Form 7407 (October 1981) titled “Basic Surface Transportation Services Contract General Provisions.” Those provisions included clause 4, “Service Requirements and Prohibitions,” which stated, in part,
“(c) The Contractor shall protect the mail from loss, depredation, or damage. The mail shall be transported in an enclosed, waterproof compartment, equipped with secure locking devices, which shall be kept locked at all times except when access thereto is required for performance of service under this contract. . .If he Contractor is authorized to carry passengers, the mail must be carried in a compartment separate from the passengers so that they cannot have access to the mail.”
Clause 16 of the General Provisions, titled “Termination by the Postal Service for Default,” sates, in part,
“(a) Upon the determination by the Contracting Officer that the public interest requires such action as a result of any of the following, the Contracting Officer may terminate the Contractor’s right to continue performance under the contract. . .:
(1) for Contractor’s failure to perform service according to the terms of the contract;
. . .
(10) if the Contractor’s transportation equipment is insufficient, inadequate, or otherwise inappropriate for the service; . . .” (AF Tab A; Stip. 3).
5. The contract also required Appellant to provide, as a minimum, one straight truck with, among other characteristics, a “Minimum Interior Bed Height From Ground” of 48 inches (Stip. 4; AF 7). Appellant was required by the contract to have his vehicle inspected and approved by the Contracting Officer or his authorized representative prior to the commence of service (Stip. 5; AF 8).
6. On March 23, 1987, Appellant was advised by Mr. Larry King, Respondent’s transportation specialist, to submit his vehicle for inspection on March 26, 1987, at the Joliet Post Office (Stip. 9; AF 76). Appellant did not acquire a truck until Saturday, March 28, and at that time no qualified inspector was available at the Joliet Post Office (Transcript page (Tr.) 15, 71). The inspection was conducted by Mr. King on Sunday, March 29 at a location near his home (Stip. 14; AF 76-81). Mr. King filled out a “Highway Contract Route Vehicle Inspection” form during the Inspection. He determined that the vehicle was unacceptable due to the following conditions, all of which we find to have been in existence at that time (Stip. 15; AF 8082, 84-85; Tr. 15-18, 38, 41):
“1. Several holes in roof. Roof structure was weak due to apparent hit, perhaps by viaduct.
2. Load bed measures 32” from ground. Contract states minimum 48”.
3. Wall particle board loose I nose. Protrusions a safety hazard.
4. Cargo compartment is not sealed or separated from drivers compartment.
5. Right side window broken completely (Glass).
6. Holes in floor near gas filler cap pipe.” (AF 85)
With the exception of Item 2, load bed height, the defects in the truck could have been repaired in a relatively short time (Tr. 39, 41, 71).
7. The bed height of the truck supplied was incompatible with the loading dock at the “head out” office – i.e., Joliet (Tr. 48). The evidence does not indicate whether the other stops on the route had loading docks. Appellant was aware that the truck he offered for inspection did not meet the bed height requirements of the contract (Tr. 60, 63). Following the inspection, Appellant indicated that he would attempt to get another truck (Tr. 18; AF 81).
8. Appellant did not operate the route on March 30 or 31, the first two days of the contract term (Stip. 16). On March 31, 1987, Appellant advised Mr. King that he did not know when he would be able to procure another vehicle to operate the route (Stip. 17; Tr. 18; AF 83). Appellant was informed that the contract would be terminated for default (AF 83). by letter dated April 3, 1987, the Contracting Officer issued a decision terminating the contract for default, citing clauses 16(a)91) and 16(a)(10) (AF 49). The bases for the termination were Appellant’s failure to make the trips on March 30 and 31 and the failure to provide acceptable equipment (Tr. 9). The termination was timely appealed to this Board.
DECISION
In this case it is undisputed that Appellant failed to perform any of the trips required on March 30 and 31, 1987. This failure, if not excusable, would justify the termination for default. Bowman’s Transportation Co., PSBCA Nos. 1088, 1089, 1092, 84-1 BCA ¶ 17,217.
Appellant’s contention is that his failure was excusable because Respondent’s rejection of his truck was unjustified for two reasons. Initially, Appellant maintains that the damage to the truck was not serious and that only minor repairs were needed to make it secure and watertight. Second, Appellant maintains that the fact that the bed height did not comply with the contract would not have affected mail delivery or processing, based on his contention that only the post office at Joliet had a loading dock.
By itself, the damage to Appellant’s truck which Mr. King found during the inspection on March 29 was sufficient to justify Respondent’s refusal to allow the truck to be used. The holes in the roof and floor, the opening between the cab and the cargo compartment, and the broken window all represented failures to comply with Clause 4 of the General Provisions.
We need not decide whether Respondent was obligated to give Appellant the time necessary to make repairs. Even if repairs had been made, Appellant’s truck still would not have met the minimum bed height requirement. this was a condition which appellant cold not remedy without replacing the truck. Appellant had told Mr. King on March 31 that he did not know when he might be able to obtain a substitute. Appellant also has not persuaded us that the incompatibility of the truck with the Joliet Post Office would have had no effect on mail operations. Thus Appellant’s failure to perform was not excusable.
We conclude that the Contracting Officer’s decision to terminate the contract for default was justified. The appeal is denied.
David I. Brochstein
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman